B-134874, JAN. 27, 1958

B-134874: Jan 27, 1958

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INC.: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 26. YOUR BID BEING THE LOWEST WAS ACCEPTED AUGUST 27. THE RECORD INDICATES THAT THE TRANSFORMER WAS DELIVERED AND PAYMENT MADE AT THE CONTRACT PRICE. INFORMED THE CONTRACTING OFFICER THAT THERE WAS AN ERROR IN YOUR BID IN THAT THE BID WAS MADE UPON THE BASIS OF A 45 PERCENT DISCOUNT FROM THE SUPPLIER. WHEREAS THE CORRECT DISCOUNT WAS 37 1/2 PERCENT. THE QUESTION FOR CONSIDERATION HERE IS NOT WHETHER YOU MADE AN ERROR IN YOUR BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE OF YOUR BID. THERE WAS NOTHING ON THE FACE OF THE BID TO INDICATE AN ERROR THEREIN AND NO ALLEGATION OF ERROR WAS MADE UNTIL AFTER AWARD.

B-134874, JAN. 27, 1958

TO BROWN-ROBERTS ELECTRIC CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 26, 1957, REQUESTING REVIEW OF SETTLEMENT DATED DECEMBER 17, 1957, WHICH DISALLOWED YOUR CLAIM FOR $288.12 ALLEGED TO BE DUE BY REASON OF AN ERROR IN BID IN CONNECTION WITH THE FURNISHING OF AN ELECTRIC TRANSFORMER TO THE VETERANS ADMINISTRATION HOSPITAL, ALEXANDRIA, LOUISIANA.

THE CHIEF, SUPPLY DIVISION, VETERANS ADMINISTRATION HOSPITAL,ALEXANDRIA, LOUISIANA, BY INVITATION NO. 58-8, DATED AUGUST 13, 1957, REQUESTED BIDS FOR FURNISHING ONE (1) ELECTRIC DISTRIBUTION TRANSFORMER 250 KVA, 7200- 120/240 VOLT, SINGLE PHASE, 60 CYCLE. IN RESPONSE THERETO YOU SUBMITTED A BID WHEREIN YOU OFFERED TO FURNISH THE TRANSFORMER FOR THE PRICE OF $2,105. YOUR BID BEING THE LOWEST WAS ACCEPTED AUGUST 27, 1957, THEREBY CONSUMMATING A VALID AND BINDING CONTRACT.

THE RECORD INDICATES THAT THE TRANSFORMER WAS DELIVERED AND PAYMENT MADE AT THE CONTRACT PRICE, BUT THAT AFTER AWARD YOUR REPRESENTATIVE ON AUGUST 30, 1957, INFORMED THE CONTRACTING OFFICER THAT THERE WAS AN ERROR IN YOUR BID IN THAT THE BID WAS MADE UPON THE BASIS OF A 45 PERCENT DISCOUNT FROM THE SUPPLIER, WHEREAS THE CORRECT DISCOUNT WAS 37 1/2 PERCENT.

THE QUESTION FOR CONSIDERATION HERE IS NOT WHETHER YOU MADE AN ERROR IN YOUR BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE OF YOUR BID. THERE WAS NOTHING ON THE FACE OF THE BID TO INDICATE AN ERROR THEREIN AND NO ALLEGATION OF ERROR WAS MADE UNTIL AFTER AWARD. A TABULATION OF THE BIDS SHOWS THAT THE PRICES QUOTED IN THE SIX OTHER BIDS RECEIVED RANGED FROM $2,105.95 TO $2,465. THUS, THE DIFFERENCE BETWEEN THE PRICE QUOTED BY YOU AND THE OTHER BIDS WAS NOT SO GREAT AS TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR AND IT DOES NOT APPEAR THAT HE WAS AWARE OF ANY OF THE FACTS OR CIRCUMSTANCES ALLEGED TO CONSTITUTE THE ERROR.

THE RECORD INDICATES THAT THE ACCEPTANCE OF YOUR BID WAS MADE IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. THE ACCEPTANCE OF YOUR BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO, AND VESTED IN THE GOVERNMENT RIGHTS WHICH NO OFFICER OR AGENT IS AUTHORIZED TO WAIVE OR RELEASE. SEE UNITED STATES. V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

MOREOVER, THE INVITATION FOR BIDS WAS CLEAR AND UNAMBIGUOUS AS TO THE NEEDS OF THE GOVERNMENT, AND THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE THERETO WAS UPON YOU. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. THEREFORE, IF YOU SUBMITTED A BID BASED UPON AN ERRONEOUS QUOTATION FROM YOUR SUPPLIER OR ANYONE ELSE, THAT IS A MATTER WITH WHICH THE GOVERNMENT IS NOT CONCERNED AND YOU MUST ASSUME THE CONSEQUENCES THEREOF OR LOOK TO YOUR INFORMANT FOR ADJUSTMENT IN THE MATTER. 6 COMP. GEN. 504 AND 18 ID. 28.

SUCH ERROR AS WAS MADE WAS DUE SOLELY TO YOUR NEGLIGENCE OR THAT OF YOUR AGENT, AND WAS NOT INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. HENCE, THE ERROR WAS UNILATERAL--- NOT MUTUAL--- DOES NOT ENTITLE YOU TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259; AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

FOR THE REASONS STATED, THE SETTLEMENT OF DECEMBER 17, 1957, IS SUSTAINED.